Former MarCon President Elaine Martin, sentenced earlier this year to seven years in federal prison following her conviction on fraud charges, is asking to be released after serving two years if her appeal before the Ninth Circuit Court of Appeals is still pending.
At the same time, co-defendant Darrell Swigert, convicted of obstruction of justice for helping Martin cover up her crimes, has withdrawn his appeal and now plans to serve out his three-month sentence and 100 hours of community service.
Martin attorney Andrew McBride claims that if his client is successful before the appeals court, she would likely be resentenced to a total of two years in prison.
"The ... motion is based on her well-grounded belief that her sentence will likely be overturned on appeal. She only seeks to protect herself against having to serve unnecessary time in custody in the event the Ninth Circuit vacates some or all of her sentence after a lengthy appeal," McBride wrote.
The defense plans to argue that a sentence enhancement imposed because of a finding that Martin caused $3 million in fraud losses was improper. The defense argues that there was no fraud loss and therefore the enhancement was invalid.
"Without the enhancement for fraud loss ... Martin's sentence would likely be 24 months under the tax counts," McBride wrote in his motion.
Martin was convicted on 22 counts of mail fraud, conspiracy and filing false tax returns. She reported in April to a low-security prison camp for women at the Federal Correctional Institution at Victorville, Calif. She is scheduled to be released Jan. 19, 2020.
On Monday, Swigert attorney C. Tom Arkoosh filed a motion asking Chief U.S. District Judge B. Lynn Winmill to withdraw his previous order allowing Swigert to remain free while he pursued his appeal.
"After discussions with my counsel, it is my desire now to dismiss my appeal and serve the sentence of incarceration imposed on me," Swigert wrote in an affidavit that accompanied Arkoosh's motion.
Swigert, 68, asked that the federal Bureau of Prisons process his conviction and give him a date to report to prison. It generally takes the prison agency six weeks to assign a prisoner to a specific prison and ask him to report.
Authorities investigated Martin over her participation in two programs offered by the Small Business Administration and the U.S. Department of Transportation to benefit economically disadvantaged companies.
The tax fraud charges were tied to unreported income from the sale of used concrete barriers. Money from the sales was deposited in a bank account unknown to company auditors, and Martin distributed it to herself, Swigert and Tory Martin, her son.
Swigert was a MarCon investor and Martin's former live-in boyfriend.
From 1997 to at least 2008, Martin submitted fraudulent tax returns and financial information to qualify for programs in Idaho and Utah, according to court documents. She obtained 33 contracts totaling $14.2 million, with profits of $3.1 million.
Winmill ordered Martin to pay $3.1 million in a forfeiture. Concrete Placing Co. of Boise bought MarCon, based in Meridian, for the amount of the forfeiture order.
Since her conviction, Martin has also paid $156,461 in restitution and the cost of the government prosecuting her case.